Towards a Public Justification of CopyrightKatie Sykes
ABSTRACT
This article explores the possibility of applying an idea drawn from the work of John Rawls, the idea of public justification, to copyright law. As the law of copyright and its effects have taken on a more prominent position in public discourse, challenges to its moral underpinnings have emerged which are difficult to answer. The author argues that this difficulty arises from the lack of a widely accepted theory of copyright which qualifies as a public justification, as Rawls conceives of it - that is, a justification that can be accepted even by those who disagree, because it proceeds from shared concepts and normative ideas. The widely-accepted utilitarian model of copyright as a device for balancing incentives for creators against public access fails to meet the criteria of a public justification. The article presents the argument that only a theory of copyright as an individual right, a view of copyright law not currently enjoying much popularity, is capable of being a public justification in Rawls's terms. It is suggested that such a theory would be better suited than the incentives-access model to delineating principled limits on copyright protection, and to reconciling the disagreements of copyright owners and the users of copyrighted works on the basis of values that both sides share.
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Citation: (2003) 61(1) U.T. Fac. L. Rev. 1.
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